9911796707
TMI Blog2003 (9) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... dated January 30, 1995 and March 10, 1995 respectively set aside the two assessment orders and remanded the matter to the assessing authority for verifying whether the purchases of prawns took place after and was for the purpose of complying with the agreement or order for or in relation to such export and as to whether the assessee had satisfied all the conditions of section 5(3) of the Act. Not being satisfied with the order of the first appellate authority the assessee took up the matter in second appeal before the Tribunal. The Tribunal disposed of both the appeals by a common order dated November 21, 1995 allowing the claim made by the assessee under section 5(3) of the CST Act. These two revisions at the instance of the State are against the said common order of the Tribunal. The only question that arises for consideration in these two revisions is regarding the correctness of the order of the Tribunal granting the claim of the assessee for exemption made under section 5(3) of the Central Sales Tax Act for the aforesaid two years. The State has raised the following questions of law for decision: (a) Is the Tribunal under the facts and circumstances in case, justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cent of the F.O.B. value of the exports to the appellants as premium of the REP licence transferred by them. The learned Government Pleader appearing for the State submitted that the assessee is not entitled to exemption from payment of sales tax made under section 5(3) of the CST Act for the reason that the assessee had not satisfied all the conditions stipulated in the said sub-section. The Government Pleader submitted that since the assessee is not the exporter of the goods purchased by it locally and since the assessee did not have any foreign contract for export of shrimps the assessee is not entitled to exemption under section 5(3). The Government Pleader submitted that the export house is the exporter and the purchase of shrimps effected by the assessee acquired the quality of last purchase by the sale effected by it to the export house. The Government Pleader submitted that the Tribunal had in fact considered the question only under section 5(1) of the CST Act and that there was no consideration as to whether the purchase turnover of shrimps effected by the assessee is entitled to exemption under section 5(3) of the Act. The learned counsel appearing for the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the export house shall procure the said marine products in the course of the export on board the ship outside the customs frontiers of India at the contracted price obtained by the export house against export orders and that the export house shall not be liable for any purchase/sales tax whatsoever which may come in force even on a subsequent date . The Tribunal on the basis of the said clause observed that the goods as well as the documents of title to goods were intended to be transferred on board the ship beyond the customs frontiers of India. The Tribunal then referred to section 2(ab) of the CST Act defining crossing the customs frontiers of India and other provisions of the Customs Act, 1962 and held that when the goods cross the limits of the area of a customs station, it is to be said that the goods crossed the customs frontiers of India. The Tribunal thereafter noted that the goods were taken to Cochin Port by the assessee, the goods were cleared by the customs authorities at the customs station in the Cochin Port, that the customs clearance was obtained by the assessee, that after the customs clearance, the goods were taken beyond the area of the customs statio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Act, prawns, during the relevant period was taxable only at the point of last purchase inside the State. According to the assessee it exported the shrimps so purchased to foreign countries through export house. Thus the liability to tax on the purchase turnover is attracted immediately when the shrimps purchased by it are exported through export house. The claim of the assessee is that though the export was made through the export house it was really an export by the assessee and therefore the purchase turnover of shrimps so exported is liable to be exempted from tax under section 5(3) of the CST Act. Section 5 of the Act reads as follows: 5. When is a sale or purchase of goods said to take place in the course of import or export (1) A sale or purchase of goods shall be deemed to take place in the course of the export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontiers of India; (2) A sale or purchase of goods shall be deemed to take place in the course of the import of the goods into the territory of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter to the assessing authority to consider the question as to whether the assessee had satisfied the requirements of section 5(3) of the CST Act. In these circumstances we are of the view that the claim of the assessee for exemption under section 5(3) of the CST Act in respect of the purchase turnover of prawns effected locally has to be considered by the assessing authority as directed by the first appellate authority in accordance with law and in the light of the two decisions of the Supreme Court mentioned above. We accordingly set aside the order of the Tribunal and remit the matter to the assessing authority for de novo consideration of the claim of the assessee made under section 5(3) of the CST Act, as mentioned above. While considering the matter certainly it is open to the assessee to place any other decisions of the Supreme Court in the matter. Since the assessments relate to the years 1983-84 and 1984-85 there will be a direction to the assessing authority to pass fresh orders as directed herein above within three months from the date of receipt of a copy of this judgment. These two tax revision cases are allowed to the above extent. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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